Latent Claims of Childhood Sexual Abuse––the Delayed Discovery Rule and Certificates of Merit

On March 22, 2016, in Latrice Rubenstein v. Doe No. 1 (Case No. D066722), the Fourth Appellate District, Division One, held that the delayed discovery rule set forth in the pertinent statute of limitations, Code of Civil Procedure § 340.1, applied to delay the accrual date of the plaintiff’s action for childhood sexual abuse, which she filed as an adult of 34 years of age. In addition, the Court of Appeal decided several issues of first impression concerning the filing of childhood sexual abuse Complaints and Certificates of Merit pursuant to Section 340.1, when the plaintiff’s age exceeds the statutory delineated age of 26 years. In such instances, the plaintiff must: (1) file Certificates of Merit and include facts therein to demonstrate a reasonable and meritorious cause to support the litigation; (2) file separate Certificates of Merit for each named Doe defendant, unless the plaintiff invokes Code of Civil Procedure § 474 (pertaining to lawsuits against fictitiously named defendants); and (3) seek an in camera review of the Certificates of Merit via an ex parte application after the filing of the Complaint and Certificates of Merit. The Court of Appeal also determined that Certificates of Merit are not required to be signed under penalty of perjury.

The plaintiff’s lawsuit in Rubenstein was premised upon allegations of childhood sexual abuse against her high school track coach, who was an employee of Doe 1, a public entity. Although the alleged abuse began in 1993, when the plaintiff was in high school, she claimed that the latent memories of the abuse did not surface until 2012, when she was 34 years old. Within six months of this discovery, the plaintiff filed a claim under the Government Claims Act (Gov. Code § 810, et. seq.); however, such was denied as untimely. In or about March of 2013, the plaintiff filed a Complaint in San Diego County against Does 1 through 20, and filed a Petition for Relief under Government Code § 946.6, which was granted in August 2013. Thereafter, the plaintiff filed a First Amended Complaint, and the public entity defendant, Doe 1, responded with a Demurrer. The trial court sustained the Demurrer, without leave to amend, based on procedural flaws in the Certificates of Merit and for failing to adhere to the time parameters of Section 340.1 (filing the Complaint within 30 days after the trial court granted the Petition for Relief). Consequently, the plaintiff filed an Appeal.

In its analysis, the Court of Appeal addressed these two primary issues by discussing the accrual date for claim filing purposes and the propriety of the Certificate of Merits.

Delayed Accrual of the Statute of Limitations

The Government Claims Act sets forth strict deadlines of six months for the presentation of a claim, or one year for a late filed claim, after the accrual of a cause of action. (See, Gov. Code §§ 945.4 and 911.4.) At issue was when the accrual of cause of action arose for the statute of limitations for filing an action for childhood sexual abuse pursuant to Code of Civil Procedure § 340.1––which has been amended numerous times.

The Court of Appeal rejected the argument that the trial court lacked jurisdiction to grant a Government Code § 946.6 Petition for Relief. While it acknowledged that Quarry v. Doe 1 (2012) 53 Cal.4th 945, 952 eliminated the common law delayed discovery rule as it relates to childhood sexual abuse claims, it clarified that the delayed discovery rule remains applicable because it is codified in Section 340.1. Specifically, the statutory delayed discovery rule provides that a lawsuit for childhood sexual abuse must be filed within the later of: (1) eight years of the date the plaintiff attains the age of majority (26 years of age) or (2) within three years that the plaintiff discovers or should have reasonably discovered that the psychological injury or illness was caused by the sexual abuse––whichever is later. (Code Civ. Proc. § 340.1, subd. (a).)

Applying liberal pleading standards, the Court of Appeal determined that the allegations within the Complaint that the track coach was an employee of the public entity defendant (Doe 1), that he sexually molested the plaintiff, that the public entity defendant knew or should have known about such abuse, and that the plaintiff’s latent memories of the abuse did not surface until 2012 were sufficient to raise the delayed discovery rule of accrual. Thus, the Demurrer should have been overruled.

The public entity defendant also argued that the plaintiff’s lawsuit was not timely filed in violation of Government Code section 946.6, subd. (f), which provides that a lawsuit must “be filed within 30 days” after the granting of an order relieving a petitioner from the claims presentation requirement under Government Code section 945.4. However, the Court of Appeal rejected this argument and cited established case law that a party is not required to perform the “idle act of re-filing” the Complaint and Certificates of Merit after the court has issued its ruling on the Petition for Relief.

Certificates of Merit

To deter against frivolous filings, any plaintiff who has reached the age of 26 years and is seeking to file a lawsuit for childhood sexual abuse must file Certificates of Merit from his/her attorney and a licensed mental health practitioner, as against each defendant named in the Complaint. (Code Civ. Proc. § 340.1, subds. (g)–(i).) These defendants must be designated as Doe defendants until the plaintiff obtains permission to substitute the name of the defendant for the fictitious designation. (Code Civ. Proc. § 340.1, subds. (m)–(o).) It is for the court to determine if there is a reasonable and meritorious case for the filing of the action against each defendant, and upon such a finding, the plaintiff is required to serve the defendant. (Code Civ. Proc. § 340.1, subd. (j).) Failure to adhere with any of these requirements makes a Demurrer ripe and may subject the attorney to disciplinary action. (Code Civ. Proc. § 340.1, subds. (g)–(i).)

Here, the Court of Appeal determined that the trial court was correct in finding that the Certificates of Merit had only recited the statutory language and lacked any facts––but found that the trial court should have allowed the plaintiff leave to amend the Certificates of Merit. In support of this holding, the Court of Appeal discussed that the pleading of these facts are essential to the trial court’s in camera determination that there is reasonable and meritorious cause of the action. Accordingly, more than mere boilerplate statutory language must be set forth in each Certificate of Merit.

In addition, the Court of Appeal determined that there must be Certificates of Merit filed for each named defendant. While the plaintiff argued that her Complaint contemplated Code of Civil Procedure § 474, the Court of Appeal found that the Complaint lacked any allegations invoking Section 474 and was inconsistent as to allegations of known Doe defendants or those fictitiously named. In light of these findings , the Court of Appeal determined that the trial court should have allowed the plaintiff to amend to clarify such allegations.

Lastly, the Court of Appeal addressed the issue of whether the defect in serving the Complaint before an in camera review of the Certificates of Merit was a proper ground to sustain the Demurrer without leave to amend. To that end, the Court of Appeal clarified that the Certificates of Merit need not be reviewed before the expiration of the statute of limitations, but do need to be reviewed by the trial court prior to service. Under these circumstances, the Court of Appeal reasoned that it would be proper for the plaintiff to request an in camera review, and then serve any amended pleading upon obtaining the necessary finding from the trial court through an ex parte application.

Rubenstein reiterates the parameters of the statutory delayed discovery rule, and sets forth procedural requirements for filing a Complaint in a childhood sexual abuse lawsuit where the plaintiff has reached the statutory delineated age of 26 years, including providing facts in the Certificates of Merit to demonstrate a reasonable and meritorious cause to support the litigation, filing separate Certificates of Merit for each named Doe defendant, and seeking an in camera review of the Certificates of Merit via an ex parte application.

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March 31, 2016